Art. 171 of the Criminal Code with comments. Illegal entrepreneurship (Article 171 of the Criminal Code of the Russian Federation)

Provided in art. 171 of the Criminal Code of the Russian Federation the composition of the offense presupposes an encroachment on the procedure for the operation of economic entities established by law. Normally, mandatory conditions are defined under which criminal liability occurs. In their absence, guilty persons face only administrative punishment.

Composition of Art. 171 of the Criminal Code

The norm establishes a penalty for the functioning of an economic entity without a license, if it is mandatory, and without registration. Obligatory conditions for prosecution are:

1. Causing major harm to organizations, the state or citizens.
2. Extraction of a large amount of profit.

To imposition of punishment under Art. 171 of the Criminal Code of the Russian Federation, it is necessary to fulfill at least one of these conditions. Guilty at the same time threatens:

1. A fine of up to 300 thousand rubles. Or in the amount of income for a period of up to 2 years.
2. The arrest lasts up to six months.
3. Compulsory work up to 480 h.

Aggravating circumstances

The law provides for 2 grounds on which the punishment for illegal entrepreneurship is toughened. Art. 171 of the Criminal Code of the Russian Federation establishes the commission of the act as:

1. An organized group.
2. Accompanying the extraction of income in the amount considered particularly large.

In these cases, the guilty person faces:

1. Penalty in the amount of 100-500 thousand rubles. Or equal to the income for 1-3 years.
2. Up to 5 years of forced labor.
3. Imprisonment for the same period.

To the last punishment the court can additionally establish a fine up to 80 thousand rubles. Or equal to the income of convicts for six months.

Art. 171 of the Criminal Code with comments

The concept of the object of encroachment is disclosed in the explanations to art. 169 of the Code. When analyzing the signs of an act, one should take into account the recommendations of the Plenum of the Armed Forces, data on the application of art. 171 of the Criminal Code. Judicial practice on the norm in question takes into account the specifics of the proceedings related to the illegal work of economic entities and the laundering (legalization) of proceeds and property acquired illegally.

Nuance

The act provided for in Art. 171 of the Criminal Code of the Russian Federation, is characterized by five forms. All actions will be recognized as criminally punishable if one of the conditions specified in Part One is observed. Major damage and income are defined in the explanations to Article 169 of the Code. As a profit when applying the provisions of Art. 171 of the Criminal Code should be understood as the proceeds from the sale of services, products and works during the time when the enterprise was illegally operating without deducting expenses incurred by the person responsible. In determining the income earned by an organized group, it is necessary to start from the amount received by all participants.

Lack of registration

Sun explained that if the register does not contain an entry on the establishment of the legal entity or the acquisition by the individual of the status of the IP, but the entity carries out economic and financial operations, its actions will be regarded as illegal entrepreneurship. Art. 171 of the Criminal Code provides for punishment for those who evade state registration, if it is mandatory by law. This procedure is a legal recognition of the organizational and legal form of the subject. It can act as a peasant farm, an individual entrepreneur, a legal entity (a commercial enterprise).

Exceptions

If the perpetrators carry out activities prohibited by law that can not be registered, liability is not provided for in art. 171, but according to other norms. For example, the illegal manufacture of weapons, explosive devices, ammunition, components to them entails punishment under Article 223. There is no provision for punishment under art. 171 of the Criminal Code for persons not registered in the status of IP, who purchased housing for personal use or received a property as a legacy (under a gift agreement) and, having provided the object for rent, received income in a large or a particularly large amount, including. For such subjects, liability can occur under Article 198 of the Code.

Violation of the rules of state registration

An economic entity can be held accountable under the provisions of art. 171 of the Criminal Code of the Russian Federation, if, having a certificate for one type of work, performs another or in another place, or in another organizational and legal form. Violations of the rules of state registration are also cases when, when registering for the knowingly for the guilty, actions were taken that give grounds to recognize the procedure as invalid. For example, the subject submitted an incomplete package of documents. Violation of the rules will also be considered continuation of work with expired validity of the certificate. The submission to the authorized body of documentation in which there are deliberately false data indicates that the registration was obtained in a fraudulent manner, and the state structure was misled by securities, the forgery of which was revealed later.

Lack of license

For the conduct of certain types of activities, legislation provides for the obligation of the subject to obtain a permit. The procedure for licensing is defined in Federal Law No. 128. The types of activities for which permission is necessary are those in which it is likely that the rights, interests, health, moral condition of citizens, security and the defense capacity of the state will be damaged. The actions of the subject providing medical services or carrying out pharmaceutical practice without a relevant license, if they entail causing damage to health or the death of a citizen, are qualified in accordance with Article 235 of the Code. If these consequences did not arise, but the work of the perpetrator was accompanied by the extraction of income in a particularly large or large amount or caused harm to the state, individuals or organizations, liability occurs under Art. 171.

Features of permitting

Licenses are issued for each type of work / services to registered entities. As the bodies authorized to issue permits, local or regional authorities can act. The legislation establishes general rules for licensing. At the same time specific types of work are indicated, the permission for which is issued exclusively at the federal level. Such activities include, in particular, the arms trade, all operations involving precious metals and stones, psychotropic / narcotic compounds, and so on. Along with this, the types of work are determined, the permission for production of which can be provided by the regional authorized bodies. These include medical, realtor, veterinary activities, the provision of services by gas stations, etc.

Administrative Responsibility

As was said above, in the absence of even one compulsory condition for the guilty, criminal punishment is not applied. When carrying out illegal business without state registration or a license or with violation of the requirements established in a special permit, without causing major harm, liability occurs according to art. 14.1 of the Administrative Code. The director of the legal entity or IP, who submitted to the authorized body the documentation containing knowingly false information, in this case is threatened with punishment under art. 14.25 (part 4) of the Code of Administrative Offenses.

The subjective part

The act is committed in the presence of direct intent. The motives of the guilty are always self-serving. The subject of the crime is a special person. As the head of an organization or an IP, which evades the receipt of a license or state registration. It should be borne in mind that citizens other than the director of an enterprise who are in labor relations with a legal entity or entrepreneurs working with violations of the law are not liable under the rule in question if they performed the duties established by the contract.

Qualifying signs

In part two of the article under consideration, two aggravating circumstances are cited . Clarification of the concept of an organized group is present in Article 35, Part 3 of the Criminal Code. The amount of damage is considered particularly large, if its amount is more than 6 million rubles. When calculating the income received by an illegal group, one must start from the aggregate value extracted by all participants. At the same time, the costs incurred by them are not taken into account.

Set of crimes

If, within the framework of the work of an enterprise, actions involving signs of acts provided for in other articles have been committed, responsibility falls on all the episodes identified. In particular, in the production, storage, acquisition, transportation for the purpose of subsequent sale or sale of unmarked products by a subject that does not have state registration / license, the penalty is charged at the norm in question in conjunction with Art. 171.1 of the Criminal Code. Similarly, the violation of the procedure for the production and use of state sample assays (Article 181) or the storage, production, sale of goods, the production of work, the provision of services that do not meet the requirements of security (Article 238) is qualified in a similar way.

Difficulties in differentiating acts

In Art. 171.2 of the Criminal Code establishes responsibility for the unlawful conduct, organization of gambling outside the established zones. Actions of the subject in this case will be of a commercial nature. In this regard, the activity should correspond to the content characteristics given in the second article of the Civil Code (paragraph 1). From this it follows that, if such actions are not directed at the systematic receipt of income, but presume the execution of one-off transactions, they do not constitute a crime component Art. 171.2. Therefore, the qualification of the act must be carried out under other articles of the code. If one or several transactions are identified and the results are obtained in the amount not reaching the large, the guilty person is brought to responsibility under articles 171 (part 1) and 33 (part 3), if his intention was to extract more income.